Opposition Brief — Joyner v. Hewitt

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Supreme Court,

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No. 91-878 JAN 6 1992

IN THE tall

Supreme Court of the Cnited States

OCTOBER TERM, 1991

JOHN JOYNER, et al.,

Petitioners,

VAY

RUBY HEWITT, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

CAROL A. SOBEL

Counsel of Record

PAUL L. HOFFMAN

MARK D. ROSENBAUM

JON W. DAVIDSON

ERWIN CF EMERINSKY

ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

1616 Beverly Boulevard

Los Angeles, California 90026

(213) 977-9500

Of Counsel:

IRELL & MANELLA

KENNETH A. LIEBMAN

ALLISON M. ZIEVE

1800 Avenue of the Stars

Suite 900

Los Angeles, California 90067

(310) 277-1010

Counsel for Respondents

Lawyers Briet Service * Appellate Brief Printers * (213) 383-4457 * (714) 720-1510

QUESTIONS PRESENTED

Whether the Court of Appeals correctly held that

governmental ownership, operation and maintenance of a

public park dominated by 36 permanent, larger-than-life size

statues of Jesus Christ and other biblical figures arranged in

thirteen scenes from the New Testament depicting the life of

Christ violates the religion clauses of the California

Constitution, the meaning of which are well-setttled under

state law, and where petitioner raised no abstention argument

at trial or on appeal.

Whether the Court of Appeals erred in reviewing de

novo the district court’s decision of a mixed question of fact

and law, or the district court’s decision of a question of state

law.

TABLE OF CONTENTS

PAGE

CUES TIGR PR ONE one hha ieee ese ewcnes i

py Fe sk ka iv

STATOR GP Tit CA 6 once chesiceseus 2

REASONS FOR DENYING THE PETITION ....... 7

I. THE COURT OF APPEAL CORRECTLY

DECIDED AN ISSUE OF STATE LAW

WHERE NO BASIS EXISTED TO SUPPORT

PULLMAN ABSTENTION BY THE

FEDERAL COURT AND WHERE ABSTEN-

TION WAS NOT RAISED AT TRIAL OR ON

APU. «bs Se ee ee eee ees 7

A. The Court of Appeal Properly Reviewed

the Decision of the District Court on State

Law Grounds Where No Basis Existed and

No Argument was Made for Pullman

AOE 3 Sek ee ees 3 7

B. The Court of Appeals Properly Applied

Well-Settled California Case Law to Find

That the Ownership and Promotion of a

Christian Theme Park by the County

Violated the More Stringent Separation

Required by the California Constitution .. 13

1. The Provisions of the

California Constitution ........... 13

a. Pete i, Section 4 .w.w see ks 14

b. Article XVI, Section 5 ...... 17

2. Application of California Law by the

POE I soo SW ooo ee eo 18

Il. THE COURT OF APPEAL CORRECTLY

REVIEWED DE NOVO THE DISTRICT

COURT’S DECISION OF A_ MIXED

QUESTION OF LAW AND FACT AND THE

DISTRICT COURT’S DECISION OF STATE

ee snc acon teens ds ek ee Raa eee oe

A. The Court of Appeal Properly Engaged in

De Novo Review of the Decision of the

District Court on State Law ........... 22

B. The Court of Appeals Properly Reviewed

De Novo a Mixed Question of Fact and

EN Nt eS eta ace Garay aie Wakes 24

ea sae od Sy dd wo 4s ae eS 8 27

TABLE OF AUTHORITIES

CASES PAGE(S)

Alabama Public Service Comm’n v.

Southern Railrod Co.,

Se OT is hn de Noh wee oy eed 9

Ashwander v. TVA,

Po PPPS CET TST eee ere eee 8

Bose Corp. v. Consumers Union of the

United States, Inc.,

nn I ora a ylele ane Nin wk aw ees 24

California Education Authonities v. Priest,

pepe BO re er cree 10, 17, 18, 22

California School Employees Assoc. v.

Sequoia Union High School District,

eg BS ere errr ae 10

California Teachers Assoc. v. Riles,

Poke 9 le. | | A ee ee 10, 18, 21

Colorado River Water Conservation District

v. United States,

ED Seas a Oia) nk kc se becouse takes )

Commissioner v. Duberstein,

NR ee eee ee ees are 25

County of Los Angeles v. Hollinger,

rei Be Fw bee \) Sa re 10, 21, 22

Evans v. Selma Union High School District,

Fee es ES 9 cee sl > oo ab Ble nae eee 10, 20

Ex Parte Newman,

PR IE inh osa-td ods we ye waa 10, 15

Feminist Women’s Health Center, Inc. v. Philibosian,

157 Cal.App.3d 1076 (1984), cert. denied,

cca eee 10, 16

Fields v. Rockdale County Georgia,

785 F.2d 1558 (11th Cir.) cert. denied,

OTF Th OE 5 SARK Ora ae Ooo ds oe 11

Finley v. United States,

itt Bice 8 bo) OR ees Bey 8

Fox v. City of Los Angeles,

Be GM PRR TITOD oecc ce cccencake bas 10, 14, 16, 19

Frohlinger v. Richardson,

Ce Ry eI D o-0 no dios oe es bos oe eee 10, 21

Hawau Housing Authority v. Midkiff,

OT Sea PEPE. 5.4.0 8 00a ss aceon ee eee 9

In re Matter of McClinn,

739 F.2d 1395 (9th Cir. 1984) (en banc) ..... 23, 24, 26

J.R. Distributors, Inc. v. Eikenberry,

Tat Ee CN GA TD oo kw eve cecwsawscneuen 11

Johnson v. Huntington Beach Union

High School District,

Oe CE ONTOS oo 6c ca whe dee seewowewen 10

Lemon v. Kurtzman,

te ke s ) rr ian Reyrei 6, 16, 20

Lynch v. Donnelly,

EE ee EE hv ee cov bh seve benew cues eo4 we 19

Mandel v. Hodges,

Fe ae SOW CISPO vavcceevesusedsvewveads 10

Manny v. Cabell,

eee ee oe Le | ee eee 11

National Capital Naturists v. Board of Supervisors,

SPF Coan FAO CUE A COD Cb ac we oe Sew eee ewe 11

Okrand v. City of Los Angeles,

207 Cal.App.3d 566 (1989) .........0.000- 10, 16, 19

Pennhurst State School & Hospital v. Halderman,

oh et PRP Tne Me rats re oe NogasalyS 8

People v. Brisendine,

13 Cab.sé 328, 531 P20 1099 (1979)... oo Se cawicn ce 14

Perumal v. Saddleback Valley Unified School District,

198 Cal.App.3d 64, cert. denied,

SO RD. Fae CUD oe ke Noo eo eRe 10

Posadas de Puerto Rico Association v.

Tourism Company of Puerto Rico,

SN Ua SOE oie ee biases ee cer eee 11

Pullman-Standard v. Swint,

Roe UB Ste CUOEE & 0 cae no os hbo ya eee 25

Railroad Commission of Texas v. Pullman Co.,

pie gid ef) eer ane ae 7-9, 11

Rindley v. Gallagher,

ow Boo ce Be Re | eee 11

Salve Regina v. Russell,

i re ya). | er 22-24

Sands v. Morongo Unified School District,

ge Rf | ee er ere re rrr 18

Siler v. Louisville & Nashville Railroad Company,

ris gta By Fs. | Serre rere reer yr ry ee 8

United States v. McConney,

728 F.2d 1195 (9th Cir.) (en banc),

cert. denied, 469 U.S. 824 (1984) ............4. 24, 25

Woodland Hills Homeowners Organization v.

Los Angeles Community College District,

rs fe Fe ee. Sere eer eee ee 10

Vii

STATUTES

WO cook kc ase peaks

CONSTITUTION

California Constitution Article I,

SL a ts

California Constitution Article XVI,

ee a ee st

California Constitution, Article I,

og A re

California Constitution, Article LX,

he RG SIR GN Nee a ae

SECONDARY SOURCES

25 Ops.Cal.Atty.Gen.

Seana be

37 Ops.Cal.Atty.Gen.

| "as

C. Wright, A. Miller, and E. Cooper,

Federal Practice and Procedure,

§ 4507, pp. 106-110 (1982) .......

PAGE(S)

atae hese 6, 13-16, 20

6, 13,17, 14, 21, 22

No. 91-878

In the Supreme Court

OF THE

United States

October Term, 1991

JOHN JOYNER, et al.,

Petitioners,

VS.

RUBY HEWITT, et al.,

Respondents.

Petition For Writ of Certiorari

To The United States Court of Appeal

For The Ninth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondents Ruby Hewitt, Ralph Winant, Jerry

Weitman, Darrell Barker and Dennis Molloy submit this brief

in Opposition to the petition for a writ of certiorari in this

Case.

STATEMENT OF THE CASE

The public parkland at issue prominently displays thirty-

six Statues organized into thirteen (13) scenes from the New

Testament depicting prominent stories of the life of Christ,

and other Christian symbols.' No other artistic displays --

secular or religious -- are located on this public land. The

only other park facilities are two picnic areas and restrooms.

ER:55.* For most of the park’s history -- in fact, until well

after the initial communication of the complaints which gave

rise to this litigation -- the official name of this park was

“Desert Christ Park.” The park has never been recognized

under any state or federal programs protecting historic

landmarks.

After a one-day bench trial, the district court concluded

that the government’s maintenance and operation of Desert

Christ Park did not violate the Establishment Clause of the

' The religious nature of these displays is readily apparent

from the photographs admitted at trial and appended to the

Ninth Circuit’s opinion. Petitioners’ Appendix (hereinafter

"Pet.App.") at pp. 28-37. Respondents have adopted Peti-

tioners’ references to the decisions below. The decision of the

district court is designated herein as "Decision." The opinion

of the appeals court is designated as "Opinion."

* The citations to the record below are designated hercin

as Plaintiffs’ Exhibit ("PX") and Excerpts of Record on Appeal

to the Ninth Circuit ("ER").

United States Constitution or the religion clauses of the

California Constitution. The court recognized that “the ‘ark

Statuary, in content and appearance, reflect traditional

Christian themes.” Decision, Pet.App. at B-13. Nonetheless,

the court concluded that the “aesthetically pleasing nature” of

the sculptures minimized their constitutional infirmity. bid.

Originally dedicated by private parties on Easter Sunday,

the District rededicated the park as Desert Christ Park in

1964, and maintained it as Desert Christ Park until May, 1987.

After plaintiffs raised Establishment Clause objections,

defendants officially changed the name of the park to

“Antone Martin Memorial Park” (ER:3, 52), while simul-

taneously including the phrase “Formerly Desert Christ Park.”

ER:S. Even after the name change, petitioners continued to

advertise the park as Desert Christ Park. ER:56; ER:14.

The park adjoins the Evangelical Free Church. ER:32,

39. Even now, there is no significant separation of the parcels

by barriers, walls or fencing and at least 120 feet of the border

between the two properties, the area on which many of the

statues are displayed, remains completely unseparated. ER:24,

25, 32-34, 39-41, 59. Moreover, one of the scenes depicted in

the park -- the bas relief Last Supper -- straddles the border

between the park and the church. ER:25, 59.

The brochure produced and distributed by the County

at the park until one year after this litigation began described

scenes by their corresponding New Testament references:

“Christ receiv[ing] a group of parents and children in the

‘Children are Blessed’ tableau [Mark:10],” the “Sermon on

the Mount [Matthew-5],” “Christ and the Woman of Samaria

[John:4],” “Christ in the Home of Lazarus [John:4],” “Christ

kneel[ing] in prayer while [the Disciples] Peter, James and

John sleep [Matthew:26],” “The Last Supper [Matthew:26],”

“{a] large figure of the seated Christ in the ‘Suffer Little

Children to Come Unto Me’ group [Mark:]0],” “Judas

Reflects,” and “Christ’s Blessing.”*

In November, 1987, plaintiffs filed suit in U.S. District

Court for the Central District of California, alleging that the

ownership, maintenance and promotion of a permanent

Christian theme park by the government violated the First

Amendment to the federal Constitution and two religion

* PX1 at 2; ER:2. The revised brochure now identifies

the same permanent statues as “Woman of Samaria,” “In the

Home of Lazarus,” “Garden of Gethsemane,” “Suffer the

Little Children” and “The Last Supper,” removing all but two

of the explicit references to Christ. ER:16. It also continues

to describe and promote scenes and symbols on adjoining

church property, including the Resurrection, Christ the

Blessing and the lighted cross, without any indication that

these scenes are not all one property owned and promoted by

the government. ER:15-16, 62.

clauses of the California Constitution. At no time in the

district court proceedings did defendants move to dismiss the

state claims or to have the district court abstain from deciding

the state claims.

The district court conducted a one-day bench trial

during which it heard testimony from six witnesses, including

two experts in the study of religion. Except for one witness,

the District Park Director, all of the witnesses testified that

they felt the park conveyed a message of endorsement of

Christianity. ER:37, 42-47, 70-71, 87.

The court unsuccessfully pressed one expert, Professor

Crossley, to say that the scenes were primarily reflective of

peace and not religion. ER:82. Professor Crossley testified

that if the scenes are viewed as images of peace, it is only

because of a view equating Christian Gospel stories of Christ

as a man of peace. ER:83. He also testified that “the New

Testament is exclusively the book of the Christian faith and all

the scenes depicted in the statuary are New Testament

Scenes,” ER:70-71, with no significance in most, if not all,

other religions, ER:75-76.

Although recognizing that the statues have “prominent

significance to Christianity,” and reflect “traditional Christian

themes” (Decision, Pet.App. at B-14 (emphasis supplied)), the

district court nevertheless concluded, without any evidence or

testimony to support this finding, that because Antone Martin

“was not a man of great religious bent[,]” the New Testament

Statues depicted peaceful scenes rather than religious ones.

Id. at B-12. The court based its holding on an erroneous and

unsupported conclusion that the New Testament was not well

known and, thus, scenes depicting the life of Christ “have not

attained the same level of religious notoriety with the general

public as a cross or a creche.” Jd. at B-14.

Based on this unsupported assertion, the trial court

concluded that the government’s ownership and promotion of

Desert Christ Park satisfied each prong of the test established

by this Court in Lemon v. Kurtzman, 403 U.S. 602 (1971).

Decision, Pet.App. at B-7-17. In its analysis of administrative

entanglement, the court focused primarily on two factors: (1)

the operating budget of the park, which the court termed “de

minimis”; and (2) the lack of any clear boundary between the

park and the church. Decision, Pet.App. at B-17-19.

Finally, the court addressed Article I, section 4 and

Article XVI, section 5 of the California Constitution,

concluding that the park is constitutional. In considering the

state constitutional claims, the district court simply quickly

referenced its Lemon analysis of the federal constitutional

issues. Jd. at B-20-23.

On appeal, both petitioners and respondents fully

briefed the federal and state law questions. The Ninth Circuit

panel unanimously held tRat_the district court had misinter-

preted state law decisions and reversed the lower court’s

decision on state constitutional law grounds. For the first time

in their Petition for Rehearing, petitioners raised a claim of

abstention. The petition for rehearing was denied.

REASONS FOR DENYING THE PETITION

I. THE COURT OF APPEAL CORRECTLY DECIDED

AN ISSUE OF STATE LAW WHERE NO BASIS

EXISTED TO SUPPORT PULLMAN ABSTENTION

BY THE FEDERAL COURT AND WHERE ABSTEN-

TION WAS NOT RAISED AT TRIAL OR ON APPEAL

A. The Court of Appeal Properly Reviewed the

Decision of the District Court on State Law

Grounds Where No Basis Existed and No Argu-

ment was Made for Pullman Abstention.

At the district court and on appeal, petitioners argued

vigorously that the challenged permanent display of 36 statues

depicting the life of Christ violated neither federal nor state

constitutional provisions. Only after the federal courts’

resources had been expended in full litigation of this case, and

only after petitioners’ judgment had been reversed on state

law grounds, did petitioners suddenly urge that the appeals

court should have abstained from reviewing the state law

claims under Railroad Commission of Texas v. Pullman Co.,

312 U.S. 496 (1941).

This Court recently reiterated the well-established rule

“that when a federal court obtains jurisdiction over a federal

claim, it may adjudicate other related claims over which the

court otherwise would not have had jurisdiction.” Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89, 117 (1984)

(citations omitted). This Court has also long held that where

a federal court properly. has jurisdiction of a case, it “may

resolve a case solely on the basis of a pendent state-law claim,

see Siler [v. Louisville & Nashville Railroad Company], 213

U.S. [174], 192-193 [1909]. . . and that in fact the Court

usually should do so in order to avoid federal questions. . . .”

Pennhurst, 465 U.S. at 117, citing Siler, supra, at 193, and

Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandcis, J.,

concurring); Pennhurst, supra, at 119 n.28. The rule

announced in Siler was most recently cited by this Court with

approval in Finley v. United States, 490 U.S. 545, 548 (1989).

Thus, “where a case . . . can be decided without reference to

questions arising under the Federal Constitution, that course

is usually pursued and is not departed from without important

reasons.” Siler, supra, at 193.

In short, abstention from the exercise of federal court

jurisdiction is “the exception rather than the rule.” Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 236 (1984). See

also Colorado River Water Conservation District v. United

States, 424 U.S. 800, 813 (1976). It has never been a

“doctrine of equity that a federal court should exercise its

discretion to dismiss a suit merely because a state court could

entertain it.” Jd. at 814, quoting Alabama Public Service

Comm'n v. Southern Railrod Co. 341 U.S. 361 (1951)

(Frankfurter, J., concurring in result).

This case offers no reason for departing from these well-

established rules for the simple reason that petitioners cannot

meet the requirements for Pullman abstention.* Most

fundamentally, this case does not involve an issue of unsettled

state law. Pullman, 312 U.S. 496. Rather, the decision below

rests on two provisions which have been a part of the

California Constitution for well more than a century, and

which consistently and repeatedly have been construed by the

Petitioners also contend that there is a conflict among

the federal circuits on whether Pullman is required whenever

a State constitutional claim is made, irrespective of how many

times that provision has been interpreted previously by the

state courts. See Petitioners’ Brief at p. 22. That simply is not

the rule of any circuit, nor of this Court, and none of the

cases cited by petitioners support this inflexible rule.

California Supreme Court and the California courts of appeal,

and in the opinions of several California attorneys general, to

mandate a broader and more absolute separation of church

and state than may be required under the federal Constitution.

See Section IB at pp. 13-18, infra.° Thus, based on an

expansive body of state appellate law, petitioners’ argument

°The California constitutional provisions at issue here have

been interpreted by the California Supreme Court no less than

five times, and by the appellate courts no less than nine times.

In addition, both provisions have been the subject of

numerous opinions issued by the state Attorneys General over

the last century. See, eg, Ex Parte Newman, 9 Cal. 502

(1852); Evans v. Selma Union High School District, 193 Cal. 43

(1924); California Education Authorities v. Priest, 12 Cal.3d

593 (1974); Fox v. City of Los Angeles, 22 Cal.3d 792 (1978);

California Teachers Assoc. v. Riles, 29 Cal.3d 794 (1981);

Frohlinger v. Richardson, 63 Cal.App. 209 (1923); County of

Los Angeles v. Hollinger, 221 Cal.App.2d 154 (1963); Johnson

v. Huntington Beach Union High School District, 68 Cal.App.3d

1 (1977); Mandel v. Hodges, 54 Cal.App.3d 596 (1976);

California School Employees Assoc. v. Sequoia Union High

School District, 67 Cal.App.3d 157 (1977); Feminist Women’s

Health Center, Inc. v. Philibosian, 157 Cal.App.3d 1076 (1984),

cert. denied, 469 U.S. 1052 (1985); Okrand v. City of Los

Angeles, 207 Cal.App.3d 566 (1989); Perumal v. Sadd!eback

Valley Unified School District, 198 Cal.App.3d 64, cert. denied,

488 U.S. 933 (1988); Woodland Hills Homeowners Organization

v. Los Angeles Community College District, 218 Cal.App.3d 79

(1990).

for abstention fails the heart of this Court’s test for Pullman

abstention as the issues of state law are well-settled.°®

® When reviewing a request for Pullman abstention, the

Ninth Circuit also considers two other factors: whether the

suit touches a sensitive area of social policy and whether a

definitive ruling on the state law issue would end the

controversy. See J.R. Distributors, Inc. v. Eikenberry, 725 F.2d

482, 487-88 (9th Cir. 1984). Judged by these standards as well,

abstention is inappropriate.

The decision of the appeals court in this instance does

not impinge on an area of sensitive local social policy

traditionally recognized as requiring abstention. In particular,

there is nothing about this dispute that is uniquely local in

nature. Nor is there anything about this dispute that suggests

that the state courts are better equipped to weigh the

constitutional values at stake. Compare, Manny v. Cabell, 654

F.2d 1280 (9th Cir. 1980) (conditions in local detention

facilities); Fields v. Rockdale County Georgia, 785 F.2d 1558

(11th Cir.) cert. denied, 479 U.S. 984 (1986) (local land-use

disputes); National Capital Natunsts v. Board of Supervisors,

878 F.2d 128 (4th Cir. 1989) (local public nudity displays);

Posadas de Puerto Rico Association v. Tourism Company of

Puerto Rico, 478 U.S. 328 (1986) (“unique cultural and legal

history” of United States territories and possessions).

Similarly, the state law question is not dispositive of the

case. Because California’s religion clauses have a meaning

independent of their federal counterparts, a decision on state

law would not “avoid, or substantially modify, the [federal]

constitutional question presented.” Rindley v. Gallagher, 929

F.2d 1552, 1555 (11th Cir. 1991). In any event, respondents

would still be entitled to litigate their federal First

(continued...)

Despite the fact that petitioners satisfy none of the

Pullman prerequisites, they now urge that the appeals court

erred in deciding the state law questions. Petitioners make

this argument on several grounds. First, they contend that the

appeals court erred in not granting rehearing on Pullman

abstention grounds once that court had issued its decision

solely on state grounds because state law questions now

predominate. Petitioner’s Brief at p. 21. Petitioners’

argument proves too much. Obviously, whenever a federal

court decides a case, in which it properly has jurisdiction, on

the state law questions only, state law claims could then be

said to predominate. That does not mean, however, and

petitioner makes no claim, that state law issues predominated

this case generally or originally.

Petitioners also contend that, because there was no

decision by the state supreme court exactly on all fours with

the facts of this case, the Ninth Circuit could not decide the

state law claims. Petitioners’ Brief at pp. 20-21. Obviously,

whenever a federal court decides a case that has not been

decided on virtually the same facts by a state Supreme Court,

this will be the argument a losing party will make. The critical

6(...continued)

Amendment claim if they were unsuccessful on their state law

claims in state court.

issue is whether the governing state law principles are clearly

established. As the Ninth Circuit recognized, the test was

plainly satisfied here. See Point IB, infra.

B. The Court of Appeals Properly Applied Well-

Settled California Case Law to Find That the

Ownership and Promotion of a Christian Theme

Park by the County Violated the More Stringent

Separation Required by the California Consti-

tution.

1. The Provisions of the California

Constitution.

The California Constitution contains three sweeping,

affirmative guaraniees of religious liberty,’ two of which are

involved in this case. Taken together, these provisions

deliberately express an even more complete separation of

government and religion than is provided under the federal

’ Article I, sec. 4 mandates absolutely neutrality by

government as it guarantees that religion may be practiced

“without discrimination or preference,” and prohibits any law

“respecting an establishment of religion.”

Article IX, sec. 8 prohibits “any sectarian or

denominational doctrine . . . or instruction. . . directly or

indirectly. . .” in the public schools.

Article XVI, sec. 5 prohibits government from

dedicating public property to, or granting “anything to or in

aid of any religious sect, church, creed, or sectarian purpose.”

Constitution.’

These three provisions have been a part of

California’s Constitution for well more than a century, have

been applied with vigilance by the California state courts. As

a matter of state law, the independent provisions of the

California Constitution are not dependent on the federal

Constitution for their interpretation. California Constitution,

Article I, sec. 24; People v. Brisendine, 13 Cal.3d 528, 551, 531

P.2d 1099 (1975).

a. Article I, Section 4.

Interpreting Articie I, sec. 4 of the state Constitution

more than 140 years ago, the California Supreme Court

emphasized that

When our libertics were acquired, our publican

form of government adopted, and our Constitu-

tion framed, we deemed that we had attained not

only toleration, but religious liberty in its largest

sense -- a complete separation between Church

and State.

’ Except for the “establishment of religion” language in

Article I, sec. 4, paralleling the language of the First

Amendment, none of these provisions “mirror or derive from

any part of the federal Constitution.” Fox v. City of Los

Angeles, 22 Cal.3d 792, 800, 587 P.2d 663 (1978) (Bird, C.J.,

concurring).

Ex Parte Newman, 9 Cal. 502, 506-507 (1858). Thus, under

the California Constitution, “when there is no ground or

necessity upon which a principle can rest but a religious one,

then the [California] Constitution steps in and says that you

shall not enforce it by authority of law.” Id. at p. 513 (Burnett,

J., concurring)(emphasis in original).

As originally enacted, Article I, sec. 4 provided that

“The free exercise and enjoyment of religious profession and

worship, without discrimination or preference, shall forever be

allowed in this state.” California Constitution of 1849, Art. I,

sec. 4. In 1879, this provision was amended to its present

form, replacing the concept of “allowing” religious freedom

with a “guarantee” of these fundamental rights.”

The Attorney General of California has written that

“{i]t would be difficult to imagine a more sweeping statement

of the principle of governmental impartiality in the field of

” Article I, sec. 4 states in full:

Free exercise and enjoyment of religion

without discrimination or preference are

guaranteed. This liberty of conscience does not

excuse acts that are licentious or inconsistent with

the peace and safety of the State. The

Legislature shall make no law respecting an

establishment of religion. [] A person is not

incompetent to be a witness or juror because of

his or her opinions on religious beliefs.

religion” than that contained in the “no preference” clause.

25 Ops.Cal.Atty.Gen. 316, 319 (1955); Opinion, Pet.App. at

A-12, citing Fox v. City of Los Angeles, 22 Cal.3d 792 (1978).

California courts have interpreted this provision as being more

protective of the principle of separation of church and state

than the guarantee provided by the First Amendment. See

Fox, supra, 22 Cal.3d at 800; Okrand v. City of Los Angeles,

207 Cal.App.3d 566 (1989). Under the “no preference”

clause, “any appearance that the government has allied itself

with one specific religion [is prohibited].” Opinion, Pet.App.

at A-12 (citation omitted).!°

The district court erroneously concluded that California

courts apply this Court’s Lemon test to analyze violations of

Art. I, sec. 4 of the California Constitution. Pet.App. at B-20-

21. In support of this position, the district court cited a

California appellate court decision handed down nearly a

decade before Lemon, and a 1978 California Supreme Court

decision, Fox, which mentioned Lemon only in a concurrence.

Opinion, Pet.App. at A-11, n.9.

Although California courts “may ‘also consult principles

of federal cases as they seem compelling guides to uncharted

state grounds|,|’” Feminist Women’s Health Center, Inc. v.

Philibosian, 157 Cal.App.3d 1076, 1086 (1984), cert. denied,

470 U.S. 1052 (1985), California courts interpreting the state

Constitution “should not view the Lemon test as absolute ‘but

as a touchstone with which to identify instances where the

objectives of the establishment clause have been

compromised.” Okrand, supra, at 573 n.6.

b. Article XVI, Section 5.

Article XVI, sec. 5 of the California Constitution, also

adopted in 1879, prohibits a union of church and state in

language which has no federal origin. The clause provides,

inter alia, that “Neither the Legislature, nor any . . . school

district . . . shall ever . . . grant anything to or in aid of any

religious sect, church, creed, or sectarian purpose; nor shall

any grant or donation of . . . real estate ever be made by the

. county .. . for any religious . . . or sectarian purpose

whatever{.]”

This clause has been characterized as “the definitive

statement of the principle of government impartiality in the

field of religion.” 37 Ops.Cal.Atty.Gen. 105, 107 (1961). The

debates of the 1879 constitutional convention ind ‘cate “that

the provision was intended to insure the separation of church

and state and to guarantee that the power, authority, and

financial resources of the government shall never be devoted

to the advancement or support of religious or sectarian

purposes.” California Educational Facilities Authority v. Priest,

12 Cal.3d 593, 604 (1974).

Mindful of the framers’ goal, the California Supreme

Court has interpreted this provision broadly: “The section [ |

forbids more than the appropriation or payment of public

funds to support sectarian institutions. It bans any official

involvement, whatever its form, which has the direct, immedi-

ate, and substantial effect of promoting religious purposes.”

Priest, supra, at 605 n.12._ Under California law, a two-part

test is applied to analyze whether government aid violates

Article XVI, sec. 5. First, courts look to see “whether the aid

is direct or indirect, and second whether the nature of the aid

is substantial or insubstantial.” Sands v. Morongo Unified

School District, 53 Cal.3d 863, 913 (1991).!?

2 Application of California Law by the Ninth

Circuit.

Contrary to petitioners’ assertion that the Ninth Circuit's

reliance on principles of First Amendment jurisprudence

demonstrates that California law is unsettled, in fact the Ninth

Circuit’s opinion rests squarely on the decisions of th«

California courts and their consideration of federal case law

only as it serves as guideposts to interpreting state

constitutional provisions.

‘Petitioners contend that the Ninth Circuit's citation to

the Sands decision is somehow evidence of unsettled state law.

Pet.Br. at pp. 15-16. This argument is simply without merit.

The only references to Sands are to that court’s citation of

two earlier decisions, both by Justice Mosk of the California

Supreme Court, articulating the test to be applied under

Article XVI, sec. 5 of the California Constitution. See

California Educational Authorities v. Priest, supra, 605 n.12 and

California Teachers Assoc. v. Riles, 29 Cal.3d 794, 809 (1981).

Referencing the district court’s reliance on Lynch v.

Donnelly, 465 U.S. 668, 692 (1984), and the “typical museum

setting,” which negates a message of endorsement (Decision,

Pet.App. at B-16), the appeals court considered the “pivotal”

distinction between a museum and the permanent, static

display of Christ statues at issue in this case. Opinion,

Pet.App. at A-16. The appeals court reasoned that this

Court’s museum/park analysis had been addressed by the

California Supreme Court twice in similar analogies comparing

library shelves and public galleries with static displays of

religious symbols on public building facades. Applying

California case law, the appeals court opined that a ‘typical’

museum, like the city hall rotunda gallery in Okrand, may

display a variety of artwork.” /d. at A-17. In this setting, the

sense of governmental endorsement of, or “preference” for,

a particular religious message could be offset by the changing

and diverse messages of the displays. Okrand, 207 Cal.App.3d

at 574; Opinion, Pet.App. at A-17.

By contrast, the park at issue here is restricted by deed

to the Christian artwork permanently displayed there. Thus,

the appeals court correctly analogized the New Testament

tableaus of Jesus Christ’s life in this case to the physical

restrictions of the lighted cross displayed on the Los Angeles

City Hall in Fox, 22 Cal.3d 792. In Fox, the California

Supreme court drew a distinction between the library shelves

setting previously considered by that court in Evans v. Selma

Union High School District, 193 Cal. 43 (1924), in which the

state could “easily . . . offset a potential for preference[,|” and

the “much less tractable [city hall tower].” Jd. at 797.

The appeals court concluded that the district court’s

opinion misinterpreted California law when it essentially

ignored these state court decisions and applied this Court’s

test in Lemon v. Kurtzman to decide the question which

should have been decided under nonanalogous provisions of

state law. First, the appeals court found that controlling

California case law did not apply the three-part test of Lemon

to analyze whether a challenged practice violates the “no

preference” clause of Article I, sec. 4. Opinion, Pet.App. at

A-11 n.9.

Second, the appeals court concluded that, under the “no

preference” religion clause of the California Constitution,

even the presence of a legitimate secular purpose will not save

a government practice which exhibits a “preference” for one

religion under Article I, sec. 4 of the California Constitution.

Id. at A-18. Without disputing the factual findings by the dis-

trict court, and relying on several decisions of the California

appeal courts, the Ninth Circuit concluded that these facts

simply did not “change the clear religious message of the

park” and the expression of a preference for the Christian

faith. Id. at A-19.

Turning to the second provision of the California

Constitution at issue here, Article XVI, sec. 5, the Ninth

Circuit reviewed two decisions of California appellate courts,

Frohliger v. Richardson, 63 Cal.App. 209 (1923) and County of

Los Angeles v. Hollinger, 221 Cal.App.2d 154 (1963), as well as

the decision of the California Supreme Court in California

Teachers Assn. v. Riles, 29 Cal.3d 794 (1981). None of these

decisions, interpreting an independent and unparalleled provi-

sion of state law, rests on federal case law. In fact, and as the

Ninth Circuit noted, the decision in Riles holds that Article

XVI, sec. 5 of the California Supreme Court often compels a

result that may be directly “contrary to decisions by the

United States Supreme Court in similar cases.” Opinion,

Pet.App. at A-24.

The Ninth Circuit correctly concluded that the park dis-

play challenged here, with its explicitly and exclusively

Christian theme, violates Article XVI, sec. 5 of the California

Constitution. The government has lent its “power and pres-

tige” by placing its imprimatur directly on the religious

message of the life of Christ, as portrayed by the statues, and

has provided a place to present that message in a core

government function, public park land.

Here, the aid to religion which results from the County’s

explicit and emphatic promotion of the park’s religious theme

of Christ’s life and the County’s maintenance of the park is

direct, immediate and substantial. As the Ninth Circuit

recognized, under Article XVI, sec. 5, it makes no difference

under California law that a valid secular purpose may in fact

underlie the challenged conduct if the benefit to religion is

anything more than incidental to a primary public purpose.

Priest, supra, at 605. In fact, the existence of a simultaneous

secular purpose, such as the purported interest in tourism or

preserving historical objects, is “wholly irrelevant and

immaterial” in analyzing a claim under Article XVI, sec. 5.

County of Los Angeles v. Hollinger, 221 Cal.App.2d at 160-61.